Claiming hazardous chemical ingredients as trade secrets

October 23, 2001

Mr. Glenn House

Environmental, Health and Safety Manager

Gougeon Brothers, Inc.

[Recipient address omitted]

Dear Mr. House:

Thank you for your August 1, 2001 letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Compliance Programs (DCP). Please be aware that this response may not be applicable to any question or situation not delineated within your original correspondence. You requested clarification of OSHA's Hazard Communication Standard (HCS), 29 CFR 1910.1200, as it pertains to trade secrets. Your question is restated below followed by our response.

Question: When can an employer claim trade secret status, and what is required for an employer to claim trade secret status of a hazardous chemical ingredient?

Reply: An employer can claim trade secret status when it can support such a claim. A trade secret may consist of any formula, pattern, device, or compilation of information which is used in one's business, and which provides an opportunity to obtain an advantage over competitors who do not know or use it.

However, chemical ingredients of public knowledge or of general knowledge in an industry that are disclosed by the goods one markets cannot be claimed as a trade secret. And, despite the claim that a hazardous chemical is a trade secret, the permissible exposure limit (PEL), threshold limit value (TLV), or other designated exposure limits, as well as properties and effects of the hazardous ingredients, must be included on the material safety data sheet (MSDS).

While we cannot provide an exact definition of a trade secret applicable to all situations, Appendix D to 29 CFR 1910.1200, OSHA's Hazard Communication Standard, outlines some factors to be considered in determining whether or not a chemical ingredient is in fact the employer's secret. Those factors include:

the extent to which the chemical ingredient is known by employees or others outside of the employer's business;

the measures taken to guard the secrecy of the chemical ingredient;

the value of the chemical ingredient to the employer or his competitors and the amount of effort or money expended to develop the chemical ingredient; and

with what degree of difficulty or ease the chemical ingredient can be duplicated.

As you may know, the State of Michigan administers its own occupational safety and health program under provisions of the Occupational Safety and Health Act of 1970 (the Act), with approval and monitoring by Federal OSHA. The Act requires states that administer their own OSH plans to promulgate regulations which are “at least as effective” as the federal regulations, although they may be more stringent. To get Michigan's position on this issue, you may contact:

Kathleen M. Wilbur, Director

Michigan Department of Consumer and Industry Services

P.O. Box 30004-4th floor, Law Building

Lansing, Michigan 48909

Phone: (517) 373-7230

Fax:: (517) 332-2129

Thank you for your interest in occupational safety and health. We hope this provides the clarification you were seeking. You should be aware that the enforcement guidance in this response represents the views of OSHA at the time the letter was written based on the facts of an individual case, questions, or scenario and is also subject to periodic review and clarification, amplification, or correction. In the future, should you wish to verify that the guidance herein remains current or access the referenced information, you may consult OSHA's website at http://www.osha.gov. If you have any further questions, please feel free to contact the Office of Health Compliance Assistance at (202) 693-2190.

Sincerely,

Richard E. Fairfax, Director

Directorate of Compliance Programs